Q & A - CRIMINALISATION

Q: Why refer to “undocumented” or “irregular” migrants and not “illegal”?

A: The term ‘illegal’ can be criticised for two main reasons:

1. Its connotation with criminality: being in a country without the required papers is, in most countries, not a criminal offence but an administrative infringement.

2. Defining an individual or group as ‘illegal’ can be regarded as denying them their humanity and risks violating their innate right to recognition as a person before the law. While referring to migrants as ‘illegal’ has political and/or societal consequences, it also fails to take into account the varying degrees of compliance which may apply to the situation of any one migrant. For example, a migrant may be legally resident but working in violation of some or all of the conditions of his visa.

Preferring the “undocumented” or “irregular” to “illegal” is a position that is increasingly being taken by a multitude of actors, including the United Nations , the Council of Europe , the European Parliament, and the European Commission, as well as numerous non-governmental organizations, local authorities, professionals from diverse fields, and undocumented migrants themselves.

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Q & A - CRIMINALISATION

Q: Why should they have rights if they shouldn’t be here?

A: Many people think that undocumented migrants have no rights since they are living without permission to legally reside in a country which is not their own. But it is a myth that undocumented migrants do not have any rights. The human rights of undocumented migrants are in fact articulated within a variety of instruments and treaties on both the international and regional levels. Non-discrimination, together with equality before the law and equal protection of the law, constitute a basic and general principle relating to the protection of human rights. The Universal Declaration of Human Rights (UDHR) confirms that human rights apply to all persons, "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

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Q & A - CRIMINALISATION

Q: Being irregular is their choice. Why don’t they come legally?

A: It is often not a choice. The routes to becoming an undocumented migrant are complex and often the result of arbitrary policies and procedures over which the migrant has little or no control. The majority of undocumented migrants entered Europe legally but after a period of time, experienced difficulties and found themselves without the relevant permit for residence. Irregularity is caused by an administrative infringement and not a criminal offence - it is a process fuelled by exploitation, redundancy, misinformation and administrative delays.

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Q & A - CRIMINALISATION

Q: How many are they?

A: According to the CLANDESTINO project (2009) the aggregate country estimate for the EU indicates a much lower level of irregular residence than previously assumed for a maximum of 3.8 million instead of 8 million undocumented immigrants. Furthermore, estimates show a clear decline in the stock of irregular resident populations from 2002 to 2008 in the EU15, which declines from 3.1 to 5.3 million irregular foreign residents to 1.8 to 3.3 million.

Because of the hidden nature of the phenomenon, irregular migration is difficult to study and reliable data, in particular, are difficult to obtain. False numbers are frequently used in demagogic discourses to fuel fear and justify increased expenditures for migration control. For example, as the Clandestino project has demonstrated, a press release of the European Commission concerning the employer sanctions Directive, which stated that “Precise figures are difficult to obtain but recent estimates of illegal migrants in the EU range between 4.5 million and 8 million” was based on estimates that were neither recent nor did they have any empirical foundation.

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Q & A - HEALTH

Q: They are irregular why should they have access to health care?

A: Every person, including undocumented migrants, has the right to health and health care. There are a number of references in the international human rights framework which address this right, but perhaps the most inclusive definition is in Article 12 of the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR) . The committee of independent experts which monitors the covenant’s implementation went a step further by highlighting that “States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and illegal immigrants, to preventive, curative and palliative health services; abstaining from enforcing discriminatory practices as a State policy..”.

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Q & A - HEALTH

Q: Why shouldn’t governments make it necessary for health care professionals to check a patient’s legal status before providing care?

A: A number of countries have attempted to pass legislation which would restrict access for undocumented migrants and force health care professionals to verify their status in the country before administering treatment. Certainly, doctors and health care professionals have no desire to act as immigration authorities and patrol access to health care for only patients that have “the correct” documentation. Besides taking a Hippocratic Oath to practice medicine ethically and care for all patients without discrimination, there have been a number of initiatives in the health profession to move towards a non-discrimination policy while accessing care. For example, in 2011 a declaration was signed by 141 health organizations, representing over 3,000,000 health professional from across Europe and states that health professionals must never allow discrimination against undocumented migrants to adversely affect the treatment that is provided.

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Q & A - HEALTH

Q: Do they come here just to benefit from our health care system?

A: Even when undocumented migrants may have legal entitlements to health care in European countries, the ability to access these services is in many cases extremely limited. Most undocumented migrants face a number of barriers in accessing health care and many are afraid to even approach any public authority, including hospitals and health care practitioners. In PICUM’s research with undocumented migrants and civil society organizations that assist them , fear of being reported to the authorities was a common reason for deciding to not visit a doctor and seek medical attention. In a survey by Medecins du Monde, they had found that 43% of its respondents in Sweden and 31% in Italy cited fear of being arrested or refused care. Even in countries that do provide programs that undocumented migrants can access, complicated and confusing administrative procedures often deter many migrants from seeking assistance.

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Q & A - HEALTH

Q: Wouldn’t giving undocumented migrants access to health care mean driving up the cost for everyone?

A: As health care professionals underline, it is better to treat an illness in the beginning stages rather than waiting until later when the illness worsens and perhaps turns more serious. If an undocumented migrant is not able to access health care services because of legal barriers, complex administrative procedures (due to high cost of the consultation or simply out of fear), this means that the individual will delay the appointment. As a result, it is only in the later and perhaps emergency stages that the person may go to the hospital. Emergency care treatment is more expensive and puts a greater strain on the hospital services, so in the end, providing care in the beginning is actually not only better for the patient but more cost efficient in the long run.

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Q & A - HEALTH

Q: If a local authority decides to give access to health care to undocumented migrants, wouldn’t this do more harm than good and attract undocumented migrants to the area?

A: In some countries in Europe, regions and cities have considerable leeway when implementing national legislation regarding access to health care for undocumented migrants. It is the responsibility of both to ensure a good quality and high standard of living for its residents and in so doing, often initiate health measures which reach out to undocumented migrants. In a recently released report by the European Union Fundamental Rights Agency, a number of cities across the EU are highlighted for their health programs which included undocumented migrants. The reasons for such programs were varied: promoting migrants’ health; providing preventative care was less expensive than having to pay for emergency treatments; ensuring disease prevention among the general population; and the importance of recognizing the rights of undocumented, because segmenting the population by giving rights to some and not all did not help with social inclusion in the city. Regions and cities that practice inclusionary policies are actually doing a greater service to all residents.

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Q & A - WORK

Q: If the working conditions are so bad why don’t they just denounce these violations?

A: An irregular migration status has severe implications on a person’s ability to denounce violations. Undocumented migrants are often living and working in isolation and have very little awareness of labour rights and of their options to defend these rights. They are also apprehensive to denouncing their employer because they are often threatened with denunciation to migration authorities should they want to make a complaint.

If an undocumented migrant does choose to report the violations and is able to receive information about the relevant judicial authorities, they are faced with another set of barriers that prevent them from meaningfully engaging in the judicial process. Cost of legal proceedings is one major barrier as undocumented migrants are in most cases not eligible for state legal aid. In some countries but not in all EU countries undocumented migrants are theoretically able to put forward complaints in labour courts but the lack of procedural guarantees put them at risk to be penalised for their unauthorised residence in the course of the proceedings.

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Q & A - WORK

Q: Undocumented migrants still earn more and have better working conditions in Europe than they would in their home countries, so why should we be concerned?

A: It is not necessarily true that the working conditions in Europe are better than elsewhere. The living and working conditions in certain low wage sectors, such as agriculture, construction, restaurant and hotel, domestic work can be extremely harsh, unsafe and unhygienic.

The exploitation and abuse of undocumented workers is a widespread phenomenon spanning across low wage sectors in Europe. Undocumented migrants often do not receive their wages or receive less than agreed upon and are fired without being given due notice; if a work accident occurs, they face difficulties accessing health care services and are not refunded the costs; they work very long hours in very difficult conditions. If an undocumented worker is apprehended for being engaged in these conditions they are generally deported without being able to claim their wages. Allowing such violations to take place, the authorities are turning a blind eye to the fundamental issue of worker abuse and the implication this situation has on labour rights in these sectors. It is important that Europe upholds basic labour rights in all economic sectors regardless of the nationality or migration status of the workers who occupy the majority of jobs in those sectors.

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Q & A - WORK

Q: Is it true that if more migrant workers come to Europe then there are not going to be enough jobs for everyone?

A: The current reality is that a growing demographic crisis, resulting in labour shortages in certain economic sectors, has created a need for foreign workers and a market demand for migration. However, there is a power imbalance in the demand and supply relation between employers and migrant workers and the situation has very unfavourable consequences for migrant workers in the low wage sector. Entire economic sectors are dependent on the presence of undocumented – and hence unprotected, easily exploitable, cheap and flexible workers in order to create easy profits and function effectively. Migrant workers are often pushed to the low wage sector and have very little opportunities to move up in the employment ladder. The improvement of working conditions in the low wage sector would open it up to all workers and allow for the fair distribution of labour according to skills. It is therefore necessary to facilitate labour mobility across all skill levels in order to reduce irregularity and exploitation in certain sectors and ensure fair working conditions for all workers.

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Q & A - WOMEN

Q: Undocumented migrants shouldn’t be here anyway, so why should we care about addressing crimes against them?

A: The right to justice and support is innate, and applies to all human beings regardless of their origin, gender, or migration status. Experiences of crime and violence are very much defined by the victims’ ability to access to safety, support, and redress. When seeking help, women with an irregular migration status frequently encounter a system that denies their rights, ignores their needs, and openly discriminates against them. Perpetrators often use this inequality to their advantage, and threats of arrest and deportation often become their main weapon in a protracted cycle of abuse and control. Existing policies have pushed undocumented migrant women into the position of Europe’s ‘zero risk victim’: with no right to redress and no-where to turn for help, they become disproportionately vulnerable to violence and abuse.

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Q & A - WOMEN

Q: Aren’t we essentially awarding criminality by protecting undocumented women from violence and exploitation? Won’t we damage our social structures?

A: Stopping violence against women can only strengthen our social fabric and stability. Doing so requires recognition of the fundamental dignity of all women and their right to safety, support, and justice. By removing these core tenets on grounds of a victim’s status, serious crimes will remain undetected and their perpetrators unpunished.

The double-standards existing in Europe regarding violence against women and the exclusion of certain groups of women from protection is undercutting many positive developments to combat this most grave and far-reaching human rights abuse. Many laws and practices throughout EU member states are responsible for fostering a culture of impunity among those who abuse and target undocumented women and their children.

Such double-standards are detrimental to Europe’s attempt to take an effective and united stand against gender-based violence. A strong Europe is one which addresses the multiple legal and structural barriers preventing certain categories of its population from accessing essential services and justice.

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Q & A - WOMEN

Q: Is it possible for police, women’s shelters, courts to support undocumented victims of crime?

A: There are numerous initiatives that manage to provide support services and justice to survivors of violence regardless of their migration status.

Women’s shelters and support services are increasingly recognising the need to ensure the physical and mental welfare of all women, regardless of where the abuse occurs or the status of its victim. Those facing limitations in terms of structural and financial support have challenged the status-quo, spoken out to change discriminatory practices or sought alternative income so they are no longer compelled to turn a woman away in her hour of need. Denouncing all violence against all women, and contesting pejorative assumptions about certain categories of women, is essential if we are to seriously combat the broader phenomenon of gender-discrimination in society.

Legislators in both Europe and the United States have found ways to remove many structural barriers that prevent migrant women to report violence and seek legal redress. Ensuring justice is both safe and accessible is essential if perpetrators are to be brought to justice and gender-based violence is to be reduced.

- The United States Violence Against Women Act (VAWA)

The Violence Against Women Act (VAWA) of 1994, 2000, and its 2005 reauthorisation recognise the predicament of immigrant survivors of domestic violence and offer them protection and assistance. The VAWA 1994 was the first federal legislation in the United States to make provision to protect immigrant women from domestic violence. The VAWA 1994 allows immigrant women married to citizens or permanent residents to self-petition for immigrant status. The VAWA 1994 also includes provision for all legal service organizations to assist victims of domestic violence, sexual assault, and trafficking regardless of the victims’ immigration status. The VAWA 2000 and its 2005 reauthorization made amendments to ease VAWA requirements and expanded services to include a broader category of immigrant women and children who previously did not qualify for VAWA. ‘The U-Visa’ was created by the VAW 2000 legislation. It is a non-immigrant visa for victims of certain crimes, including domestic violence. This visa allows victims to reside legally in the U.S. while cooperating with law enforcement to prosecute offenders and prevent these crimes.

- Spain’s Legal Framework to Address Gender-Based Violence

The legal system existing in Spain to protect migrant women from gender-based violence regardless of their status is the most comprehensive among all European or Council of Europe states and considered a significant good practice in the region. Article 31 of Spain’s Gender–based Violence Act (2004) (Organic Law 1/2004 of 28 December) guarantees rights to ‘All women suffering gender violence, regardless of their origin, religion or any other personal or social condition’ and affirms that ‘particular attention shall be given to the situation of women whose personal and/or social circumstances put them at greater risk of suffering gender violence.’ The Spanish Immigration Act (2009), (Organic Law 2/2009 of 11 December) stipulates in Article 31(a) 2 that the Integral Protection Measures in the 2004 Gender Violence Act does apply to all women in Spain regardless of their immigration status, thus providing a protective order including a temporary residence permit which will become permanent if her aggressor is condemned. The Spanish authorities have also issued an instruction to all police stations to inform them of the protocol for dealing with undocumented foreign women victims of domestic or gender-based violence.

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Q & A - CHILDREN

Q: Aren’t all children protected in Europe?

A: Although every country in Europe has systems in place to protect children, children in an irregular migration situation remain very vulnerable. The tension between migration control and child protection usually results in undocumented children being treated differently and separately from “all” children. They are subjected to repressive migration control measures along with their parents, with little consideration of the negative impacts on them and their future development. Their access to basic social rights such as education, health care and housing are very restricted, and they can be detained and deported. Although authorities usually have a duty to care for children, they are often very reluctant to support families in need. This can lead to families being forced to separate, or else the child’s needs being ignored.

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Q & A - CHILDREN

Q: Why should we invest in their education when they are only here temporarily?

A: The importance of education and schooling is well recognised and promoted across the world as fundamental to children’s personal and social development. Whether or not a child will stay in Europe should not be a reason to limit their future through denying education. Further, not allowing children to attend school while they are in Europe can only be damaging to the whole community, creating an excluded group. This can inevitably have very negative effects on the identity formation and outlook of children and adolescents who only want to be the same as their peers. As many children who grow up in Europe will actually stay in Europe , this period of exclusion is all the more negative, breeding resentment and causing them to have to “integrate” at a later stage.

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Q & A - CHILDREN

Q: Their parents bring them here, why should they be our responsibility?

A: Many children spend their formative years in Europe, or are even born here, but they are still considered “undocumented migrants” or may are affected by having a parent who is undocumented, although this is the only home that they know. They belong to our communities.

Parents have the primary responsibility for caring for their children, but governments and communities also have a responsibility. International and national laws make governments and public bodies legally responsible for guaranteeing many rights for all children within their territories, regardless on immigration status. The idea that children’s interests should be considered first is also well accepted and a principle of law – we always strive for the best possible solution for the child.

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Q & A - CHILDREN

Q: Why would their parents allow them to live in poor conditions?

A: The vast majority of undocumented families have no access to social housing despite being in dire need. Due to controls on the private housing market and the shortage of affordable, decent rental accommodation throughout Europe, undocumented families are often forced to live in precarious and unsuitable housing conditions. They are very vulnerable to exploitation from unscrupulous landlords. So, they often have no choice but to move frequently, relying on friends and family, and living in overcrowded conditions.

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